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Interior Department won't accept FOIA requests during shutdown

The Interior Department is not accepting public requests for information during the partial government shutdown, which is now in its 14th day with no end in sight.

The agency’s Freedom of Information Act (FOIA) request website--an automated site that typically accepts requests through drop-down menus--is no longer receiving new submissions.

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Members of the press, advocacy groups and individuals looking to request public information are now greeted with a message that reads: “No FOIA requests can be accepted or processed at this time.”

Interior spokeswoman Faith Vander Voort said the lapse in funding is why the agency cannot accept new submissions.

“FOIA requests cannot be processed at this time due to the lapse in funding as is standard protocol," she said in a statement Friday. "FOIA requests are not directly related to protecting life and imminent threats to property."

Critics, however, say no manpower is needed for an automated site to receive requests.

“It does strike me as out of the ordinary," said Margaret Kwoka, an associate professor on civil procedure and administrative law at the University of Denver. "It is true that typically agencies may stop functions that require fundings but they are not blocking things that are passive."

“The agency isn’t doing anything on its end in terms of necessary expenditures,” she added.

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FOIA requests for other agencies affected by the partial shutdown remain functioning via Foiaonline.gov, which serves agencies like the Justice Department, Environmental Protection Agency and U.S. Customs and Border Protection.

Similarly, a 2018 memo from the Equal Employment Opportunity Commission during last January’s shutdown said, “EEOC will accept all FOIA requests during the federal government shutdown, but EEOC will not be able to process FOIAs until after the federal government reopens.”

The Justice Department's annual FOIA handbook, last updated in 2017, says FOIA officers must still file requests within their allotted time window despite the government being shut down.

“Accordingly, even where an entire agency FOIA office is closed due to weather conditions, furloughed employees, or other circumstances, the agency must count those days for reporting purposes,” read the report.

Jeff Ruch, the president of Public Employees for Environmental Responsibility, called the timing dubious, especially as Interior has recently pointed to its extreme backup in responding to FOIA requests. The delay has lead to numerous lawsuits.

Under a government shutdown, all FOIA offices are required to keep the clock running on the amount of time they are allowed to take to respond to each request for public information. If that exceeds 20 days, the requester has a right to sue.

But, Ruch said, if there’s no way to submit that initial request, then the clock can't start ticking.

“Just because they are shut down doesn’t mean the statutory deadlines are waived," he said. “With online (FOIAs) you get an automatic receipt, so if an agency says it won’t receive it, the clock starts later. It might give them a grace period.”

Even though Interior is not accepting FOIA requests during the shutdown, the agency is making changes to its FOIA policy.

The agency on Dec. 28 submitted a proposed rule change to the Federal Register that critics say would make it easier for the department to deny FOIA requests or take more time answering them.

Interior officials would not answer questions pertaining to the timing of the rule submission, citing the shutdown.

The clock on the comment period for the rule ends on Jan. 28, but no public comments can be taken during the shutdown.

“It’s spending resources on trying to change their FOIA procedures and on the other hand saying they don't have the resources to accept FOIA requests -- that to me seems a particularly odd thing,” said Kwoka.

Ruch said that while advocacy groups could try to sue over the FOIA blockade, that in itself poses its own conundrum.

“How you enforce that violation becomes problematic because the only way you can enforce that is in court, and then that of course would depend on the judge. Is a judge going to give the agency an extension?” he said. “And that is going to be further complicated by, what we understand is, the federal courts are going to run out of money. So whether there is enforcement of any kind becomes an issue."